Surrogacy laws can be confusing — especially because there are no federal laws regulating surrogacy in the United States.
State surrogacy laws play a large role in shaping the legal surrogacy process for intended parents and surrogates alike. Learn more about the state laws that could impact your surrogacy, whether you live in a surrogacy-friendly state, a non-surrogacy friendly state, or somewhere in between.
Some states are considered to be completely “surrogacy-friendly,” meaning they either have statutes permitting and recognizing surrogacy, or they have a long history of favorable rulings in surrogacy cases.
Surrogacy-friendly states generally grant pre-birth orders regardless of intended parents’ marital status, sexual orientation, and in some cases, genetic relationship to the baby. These states allow compensated and uncompensated surrogacy agreements. However, traditional surrogacy laws vary; in some states, traditional statutes are considered unclear or legally risky.
These states are considered surrogacy-friendly:
- New Hampshire
- Rhode Island
Non-Surrogacy Friendly States
On the opposite end of the spectrum are “non-surrogacy friendly states.” These states generally do not recognize or enforce surrogacy contracts and have statutes or published case law prohibiting compensated surrogacy.
Non-friendly states usually do not grant pre-birth orders, and traditional surrogacy is either discouraged or unenforceable. Compensated surrogacy arrangements or any surrogacy arrangement which goes against the state’s laws may be subject to fines or criminal penalties.
These states are not surrogacy-friendly:
- District of Columbia
- New Jersey
- New York
While some states are considered entirely surrogacy-friendly and some are considered unfriendly, most states fall somewhere in between. Surrogacy can be practiced in these states, but laws may offer varying or uncertain levels of protection for surrogates and intended parents. The legal process may be more complicated than in surrogacy-friendly states, and the results of surrogacy cases may be inconsistent.
Of these states, some are more surrogacy-friendly than others. In more surrogacy-friendly states, gestational surrogacy is usually permitted by statute, or there are no laws prohibiting surrogacy. Pre-birth orders may or may not be granted, and in some states, the availability of pre-birth orders may depend on the county, the intended parents’ marital status or their genetic relationship to the child.
These states are considered more surrogacy-friendly:
- North Carolina
- North Dakota
- New Mexico
- South Carolina
- South Dakota
- West Virginia
In less surrogacy-friendly states, surrogacy may be practiced, though there may be legal obstacles or additional legal processes that are required to complete the surrogacy. For example, pre-birth orders may not be granted, or surrogacy contracts may be legally unenforceable. Often, these states have unclear surrogacy laws, and the results of surrogacy contracts may vary significantly.
These states are considered less surrogacy-friendly:
It is important to note that very few states actually have statutes explicitly prohibiting or permitting surrogacy. Most state-by-state surrogacy information is instead based on court decisions made in past surrogacy cases. This means that individual circumstances can help shape the legal surrogacy process, and in some states, surrogacy cases can be handled differently from county to county or even from one judge to the next.
There are a number of factors and variables that can complicate surrogacy law, so it is extremely important to work with an assisted reproduction attorney in the state where your surrogacy is taking place. Your attorney should be able to answer questions about specific surrogacy laws in your state and can help you navigate the legal surrogacy process under your circumstances.